VISA INFORMATION
Foreign nationals may qualify as B-1 business visitors if they (1) maintain a foreign residence with no intention of abandoning; (2) receive no salary or fee from a U.S. source; (3) are not engaged in either skilled or unskilled local labor in the U.S. and (4) have adequate financial means to travel. Activities which are encompassed under B-1 status include: (a) commercial transactions not involving employment; (b) negotiating contracts; (c) consulting with business associates; (d) participating in conferences or seminars; and (e) performing duties as a member of a board of directors of a U.S. company.
In lieu of a B-1 visa, foreign nationals from certain countries (principally European) may enter the United States on the visa waiver program, designed for aliens from certain designated countries to enter the United States for 90 days without having a visa issued. Stay cannot be extended beyond 90 days, nor can an alien change status to another non-immigrant visa category. Instead, the alien will have to leave the country and apply for a new non-immigrant visa abroad.
E-1 treaty traders are those citizens of certain countries with whom the United States has entered into trade treaties who are permitted to enter the United States to establish or work for a particular enterprise engaged in substantial trade principally between the U.S. and the treaty country. The company or individual engaging in trade in the United States must have the same nationality as the treaty company, and the enterprise must be majority-owned by treaty country citizens. The foreign nationals employed in the U.S. must be employed in a supervisory or executive capacity, or one involving essential skills to the operation of the enterprise.
Treaty investor status requires:
- An investment treaty between the U.S. and the country of which the treaty enterprise is a “national”
- At least 50% ownership of the investing enterprise by nationals of the treaty country; and
- Citizenship in the treaty country by the principal investors and those employees seeking admission through the treaty enterprise. The investor is required to make an active, substantial investment, which is not marginal in nature (i.e.; not intended merely to support the investor and his family). The foreign national seeking treaty investor status must fill a key or essential role with the company, either as the director who will direct or manage the investment, or as a specially trained and highly qualified employee necessary for the development of the business.
Temporary E non-immigrant visas allow business owners, managers, and employees to remain in the United States for extended periods of time.
A total of 65,000 visas are available annually for foreign nationals in “specialty occupations.” A specialty occupation involves the theoretical and practical applications of a body of highly specialized knowledge, and the attainment of a Bachelor’s Degree (or its equivalent) or higher degree in the specific specialty. A job requiring such a Bachelor’s Degree is also essential.
An employer seeking to hire a professional from abroad must first file and obtain approval of a labor condition application filed with the Department of Labor making the following attestations:
- No strikes or lockout at the place of employment;
- The alien will be paid higher of the actual wage or the “prevailing wage;” and
- No U.S. workers will be adversely affected by the hiring of the alien
H-1B visas may be conferred in three-year increments. A total of six years is permissible in H-1B status, but may be extended in certain circumstances where an employer has either: (1) filed a labor certification for the employee seeking permanent residence, or (2) filed an immigrant petition, either of which has been pending for a year.
The equivalent of H-1B visas for Canadians and Mexican professionals are “TN” visas, which may be applied for at border posts. There are special restrictions on admission of Mexicans under NAFTA, however, which may make this category of more limited value to Mexican nationals. Canadian professionals, if they qualify, may enter the United States under NAFTA without the necessity of approval by the DHS of a petition filed on their behalf by their supporting employers. Rather, presentation of appropriate documentation is necessary at the port of entry.
TN Visas are reserved for groups of professionals who are designated on Schedule 2 of NAFTA. Such visas are valid for one year, but may be extended indefinitely. TN applicants are required to establish their non-immigrant intent at the border. There is no numerical cap on the number of Canadian TN professionals admitted annually.
L-1 visas are utilized by companies requiring their foreign employees to work in the United States for a temporary period. The foreign and U.S. employer of the transferee must be a part of the same qualifying organization such as a parent, branch, affiliate, subsidiary, etc.
L-1B visas are available for individuals possessing “specialized knowledge” of the company’s produce and its application in the international market or having an advanced level of knowledge with regard to the processed and procedure of the company. The foreign national is required to have been employed in a specialized knowledge capacity with the foreign company for at least one year of the three preceding years prior to the transfer. L-1B non-immigrants are entitled to a maximum stay of five years. A total of three years may be granted initially.
L-1A visas are available for managers and executives. A foreign national performing managerial duties must have been employed in a managerial or executive capacity with the foreign company for one year within the three previous years of the transfer. The foreign national must be coming to perform duties related to the management of an organization.
An alien coming to perform executive duties is one who has responsibility for the management of an organization or major component or recognized function; has authority to establish goals or policies; exercises wide latitude and discretionary decision making; and receives only general supervision from higher executives or stockholders. The L-1A manager or executive must also have been employed in an executive, managerial, or specialized knowledge capacity with the foreign company for one year within the preceding three years of the transfer. An L-1A transferee is entitled to a total period of stay of seven years.
L-1 visas are utilized by companies requiring their foreign employees to work in the United States for a temporary period. The foreign and U.S. employer of the transferee must be a part of the same qualifying organization such as a parent, branch, affiliate, subsidiary, etc.
L-1B visas are available for individuals possessing “specialized knowledge” of the company’s produce and its application in the international market or having an advanced level of knowledge with regard to the processed and procedure of the company. The foreign national is required to have been employed in a specialized knowledge capacity with the foreign company for at least one year of the three preceding years prior to the transfer. L-1B non-immigrants are entitled to a maximum stay of five years. A total of three years may be granted initially.
L-1A visas are available for managers and executives. A foreign national performing managerial duties must have been employed in a managerial or executive capacity with the foreign company for one year within the three previous years of the transfer. The foreign national must be coming to perform duties related to the management of an organization.
An alien coming to perform executive duties is one who has responsibility for the management of an organization or major component or recognized function; has authority to establish goals or policies; exercises wide latitude and discretionary decision making; and receives only general supervision from higher executives or stockholders. The L-1A manager or executive must also have been employed in an executive, managerial, or specialized knowledge capacity with the foreign company for one year within the preceding three years of the transfer. An L-1A transferee is entitled to a total period of stay of seven years.
The second preference or category is reserved for those persons who are members of the professions holding advanced degrees or aliens of exceptional ability. There are 40,000 visas available annually. Aliens who hold advanced degrees or their equivalent possess at least the equivalent of a U.S. Masters Degree for a position which requires the degree. A Bachelor’s Degree and five years experience can qualify an alien, if the position ordinarily requires the Master’s Degree. Experience, however, cannot substitute for a Ph.D.
Foreign nationals also qualify under the second preference if, because of their exceptional ability in the sciences, arts, or business, they will substantially benefit the national economy, culture, educational interests, or welfare of the United States. In short, exceptional ability foreign nationals are those who possess a degree of expertise, which is well above that encountered ordinarily in the sciences, arts, or business.
Aliens of exceptional ability must demonstrate at least three of the following: ten years of full time experience in the occupation; a license to practice the profession; an official academic record showing a degree, diploma or similar award from a university; evidence of a high salary; membership in professional associations; recognition for achievements and significant contributions to the industry by peers, governmental entities, or professional organizations; or other comparable evidence.
An exceptional ability alien or a foreign national with an advanced degree is required to obtain a job offer and labor certification unless it can be shown that a waiver of this requirement is in the national interest. An exemption from these requirements may be granted upon a showing that the alien’s work is of substantial intrinsic merit and is national in its scope. There must also be a showing that the alien’s participation in his field considerably outweighs any inherent national interest in protecting U.S. workers through the standard labor certification process.
There are 40,000 visas reserved each year for skilled workers, professionals, and other workers. “Other workers” cover workers who are “capable of performing unskilled labor” and who are not working in a temporary or seasonal capacity. However, there are only 5,000 allotted to such unskilled workers. Skilled workers are those capable of performing skilled labor which required at least two years training or experience. Relevant post-secondary education may count as training. Professionals are those who possess a Bachelor’s Degree or its foreign equivalent. Petitioners must also demonstrate that such a degree is the normal requirement for entry into the profession.
A job offer and labor certification is required for most foreign nationals under the third preference. However, there is a limited exception for physical therapists and nurses.
The fourth employment-based category is reserved for those “special immigrants” including ministers, religious workers, and select others. There are a total of 10,000 visas available annually.
The fifth employment-based category is reserved for “investors”. There are a total of 10,000 visas available annually.